484 F.

3d 644

Kurt H. EICHORN; William J. Huckins; T. Roger Kiang;

Edward W. Landis; Orlando Napolitano, Individually and on
Behalf of all others Similarly Situated; Gilbert G. Daley; Susan
H. Dibona; Beth King; Michael S. Oratowski; Thomas L.
Salisbury; Lawrence Walsh, Individually and on Behalf of all
Others Similarly Situated; William Lawless; Russell Leppala;
Gabe P. Torok; Judith B. Brugner; Kate Harris; Carole T.
Johnson; Charles O. Laughlin, II; Michael A. McFarland;
Barbara Oliver; Gary Patterson; Robert Prouix; William J.
Schrott; Robert Michael Shepherd; Ronals A. Sokol; Joseph T.
Szlasa; Diane F. Taylor; Lorraine J. Welch; Marie Zeits,
Appellants
v.
AT&T CORP.; Lucent Technologies Inc.; Texas Pacific Group;
NCR Corporation; The CIT Group, Inc.; John Doe
Corporations 1-10.
No. 05-5461.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) March 27, 2007.
Filed May 2, 2007.

Noel C. Crowley, Crowley & Crowley, Morristown, NJ, Counsel for

Appellants.
Carmine A. Iannaccone, James P. Flynn, Lauren D. Daloisio, Epstein,
Becker & Green, Newark, NJ, Counsel for Appellees AT&T Corp.,
Lucent Technologies, Inc. and NCR Corp.
David M. Fabian, Christine M. Gurry, Traflet & Fabian, Morristown, NJ,
Counsel for Appellee, TX PAC Group.
Robert M. Leonard, Drinker, Biddle & Reath, Florham Park, NJ, Counsel
for Appellee, CIT Group, Inc.

Before: FISHER, JORDAN and ROTH, Circuit Judges.

OPINION OF THE COURT
JORDAN, Circuit Judge.

This case is before us for the second time on appeal. In the previous appeal,
Eichorn v. AT&T Corp., 248 F.3d 131 (3d Cir.), cert. denied, 534 U.S. 1014,
122 S.Ct. 506, 151 L.Ed.2d 415 (2001), we held that the plaintiffs had
presented sufficient evidence of the defendants' specific intent to interfere with
their pension rights to survive summary judgment on their claims under 510
of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1140.
Id. at 150. We reversed the District Court's order granting summary judgment
to the defendants and remanded for further proceedings. Id. After nearly three
years of additional proceedings on remand, the District Court again granted
summary judgment to the defendants, holding that the relief the plaintiffs
sought was not available to them. The plaintiffs appeal from that order and
challenge several of the District Court's interlocutory orders. We will affirm.

* We have previously set forth the basic facts in this litigation, Eichorn, 248
F.3d at 136-37, and we recite only the facts relevant to the present decision.

* The plaintiffs are former employees of Paradyne Corporation ("Paradyne").

In 1995, Paradyne was part of AT&T Corp. ("AT&T"). AT&T reorganized that
year, splitting into three parts: AT&T, Lucent Technologies, Inc. ("Lucent"),
and NCR Corporation. In the course of the reorganization, AT&T transferred
Paradyne to Lucent. In 1996, Lucent sold Paradyne to a business called Texas
Pacific Group ("Texas Pacific"). Before that sale, the plaintiffs in this case had
pension plans that included certain "bridging rights." If an employee left Lucent
or another of the former AT&T companies and returned within six months,
either to the company the employee had left or to another of the former AT&T
companies, the employee could "bridge" the two terms of employment, receive
pension credit for all prior service, and continue to accrue pension benefits as if
he had never left. If the employee left and did not return until after the sixmonth "bridging period" had expired, the employee would need to work for an
additional five years to regain his previous level of pension benefits.

The alleged basis for the plaintiffs' ERISA claims is that the defendants entered
into agreements as part of the sale of Paradyne that had the effect of cancelling
the plaintiffs' bridging rights. In 1995, when Paradyne was part of AT&T,
AT&T announced its intent to sell Paradyne. Recognizing the value of

Paradyne's work force, and wanting to make Paradyne more attractive to

potential buyers, AT&T announced a policy precluding any employee who
voluntarily left Paradyne from being hired by any other division of AT&T. On
June 18, 1996, Lucent and Texas Pacific signed a purchase agreement for the
sale of Paradyne, and on July 31, 1996, the sale closed. The June 18 purchase
agreement included a provisionreferred to in this litigation as the "Pre
Closing Net" whereby Lucent promised that neither it nor any of the other
former AT&T companies would hire any Paradyne employees who left
Paradyne voluntarily before the sale closed and whose annual salaries were
more than $50,000. On the date of the closing, Lucent signed an "employee
matters agreement," which included a paragraphreferred to in this litigation
as the "Post Closing Net"extending the provisions of the Pre Closing Net for
245 days (eight months) after the closing.
5

Once the sale closed, the Paradyne employees' employment with Lucent
terminated, and the "bridging period" began. Because the no-hire agreement
embodied in the Pre Closing Net and Post Closing Net lasted for eight months,
the Paradyne employees who made more than $50,000 annually were
prevented from exercising their bridging rights.1

B
6

Near the time of the Paradyne sale, Kurt Eichorn and Gilbert Daley filed
substantially identical class action complaints in the United States District
Court for the District of New Jersey, naming AT&T, Lucent, and Texas Pacific
as defendants, and asserting, inter alia, that the Pre Closing Net and Post
Closing Net violated 510 of ERISA. The actions were consolidated and, after
discovery, the District Court granted the defendants' motion for summary
judgment, holding that the plaintiffs had not put forth sufficient evidence to
create a triable issue of fact as to whether the defendants had the required intent
to interfere with the plaintiffs' bridging rights. Eichorn v. AT&T Corp., No. 963587, 1999 WL 33471890, at **2-6 (D.N.J. Aug. 23, 1999). On appeal, this
court reversed and remanded that holding because we determined that the
plaintiffs had presented sufficient circumstantial evidence to create a genuine
issue of material fact regarding the defendants' intent. Eichorn, 248 F.3d at 14950. The panel also directed the District Court on remand to address the
plaintiffs' motions for additional discovery and for class certification. Id. at
150.

C
7

On remand, the District Court reopened discovery and allowed the plaintiffs to

file a motion for class certification. The parties appear to have proceeded after
remand on the assumption that the plaintiffs would be entitled to some form of
compensatory damages if they succeeded in proving their ERISA claims. On
May 27, 2003, over three months after the close of reopened discovery and
some seven years from the start of the case, the plaintiffs submitted
spreadsheets to the District Court, offering their damage calculations for the
first time. The spreadsheets were prepared by plaintiffs' counsel's son, Stephen
Crowley, who was not offered as an expert and has no training or experience
with the economics of employment benefits.
8

Mr. Crowley's calculations purported to quantify what each plaintiff would

have earned in pension benefits, had he or she remained employed at an AT&T
company after the sale of Paradyne. In performing the calculations, Mr.
Crowley made various assumptions about such future events as when the
plaintiffs would have retired, how their salaries would have increased had
Paradyne remained part of Lucent, what choices the plaintiffs would have made
with respect to their pension benefits, and what each plaintiff's life expectancy
was. With his calculations, Mr. Crowley submitted a life expectancy chart from
the "Foundation for Infinite Survival" and various statistical tables from the
United States Department of Labor which, he asserted, provided part of the
basis for his calculations.

The District Court accepted the plaintiffs' belated submissions and reopened
discovery again to allow the defendants to depose Mr. Crowley. After deposing
Mr. Crowley, the defendants made a motion to strike his calculations and to
preclude him from testifying at trial. The plaintiffs opposed the motion and
argued that, if the District Court were to grant the defendants' motion, the
plaintiffs should be allowed to engage a damages expert. On November 10,
2004, the District Court granted the defendants' motion and denied as untimely
the plaintiffs' request for leave to engage an expert.

10

In the course of making his initial ruling from the bench, which was later
reduced to a written order, the District Judge explained that he did not believe
his order would effectively end the case for the plaintiffs, because the plaintiffs
might still be entitled to seek back pay and would not need the assistance of an
expert to establish their entitlement to that relief. The Judge said,

11

at a minimum, it would appear that a back pay case can in some manner or
other go to the jury. Indeed, in this type of ERISA claim, a back pay claim is
normally one of the court claims which go. In short, the theory of the case is
that the plaintiffs were precluded from employment because of and based upon
a desire to deny them . . . rights which they have under ERISA. . . .

12

And therefore, in the Court's view, what could and would go to the jury would
indeed be claims predicated upon the denial of their employment and potential
back pay claims.

13

Further, the District Judge noted that the plaintiffs sought injunctive relief, and
the Judge agreed that there was "at least a possibility" that such relief was
available. Even so, he did not definitively rule on the issue, and the written
order stated that "the Court does not reach the issue whether plaintiffs can
quantify or establish any right to `back pay' and/or equitable relief increasing
plaintiff[s'] pension benefits and reserves such issue for resolution at or before
trial." After he granted the defendants' motion to strike Mr. Crowley's
testimony and evidence, the District Court ordered the parties to confer with a
magistrate judge "to schedule limited discovery of remaining damages issues
and preparation of a final pretrial order."

14

After the reopened discovery closed, the defendants moved for summary
judgment. They argued that the only relief available to the plaintiffs on their
claim under ERISA 510 for unlawful interference with benefits is the
"appropriate equitable relief" available through 502(a)(3) of the statute.
Summary judgment was appropriate, they argued, because the only relief that
the plaintiffs had requested or could requestgiven the District Court's order
striking Stephen Crowley's submissions and denying the plaintiffs leave to find
an expert to replace him was "back pay," which is not "equitable relief"
under 502(a)(3). The District Court agreed with that analysis and,
accordingly, granted summary judgment to the defendants. The plaintiffs now
appeal, challenging the summary judgment order, the order that struck Stephen
Crowley's submissions and denied leave to retain an expert, and certain other
interlocutory orders.2

II
15

The plaintiffs argue that the District Court erred both in ruling that Mr.
Crowley's proposed evidence was inadmissible and in denying them leave to
present an expert in lieu of Mr. Crowley. More specifically, though the
plaintiffs concede that Mr. Crowley was not qualified as an expert, they argue
that no special qualifications were necessary to testify regarding future damages
in this case and that Mr. Crowley's testimony and spreadsheets were admissible
under Federal Rule of Evidence 1006 as summaries of the contents of the
statistical tables he submitted. The plaintiffs also argue that the District Court's
order denying them leave to retain an expert witness after Mr. Crowley was
excluded was an abuse of discretion. Those arguments are without merit.

16

* In excluding Mr. Crowley's evidence, the District Court was within the broad
discretion afforded it under Federal Rules of Evidence 701 and 702 to act as a
gatekeeper charged with preventing unreliable opinion testimony. Although this
court has recognized that lay opinion as to technical matters may sometimes be
appropriate, Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 120001 (3d Cir.1995), we have cautioned that "Rule 701 requires that a lay opinion
witness have a reasonable basis grounded either in experience or specialized
knowledge for arriving at the opinion that he or she expresses.... In order to
satisfy these disposition of this case. Rule 701 requirements, the trial judge
should rigorously examine the reliability of the lay opinion by ensuring that the
witness possesses sufficient special knowledge or experience which is germane
to the lay opinion offered." Id. at 1201 (original emphasis). Whether a witness
is "qualified" to offer opinion testimony is committed to the discretion of the
trial court, and we have no difficulty holding that the District Court was within
its discretion in saying that Mr. Crowley was not qualified to offer a damages
opinion here. As the plaintiffs concede, Mr. Crowley had no personal
knowledge of the underlying facts and no relevant experience or training.3

17

We also reject the plaintiffs' argument that Mr. Crowley's submissions were
admissible under Rule 1006. That Rule provides that "[t]he contents of
voluminous writings, recordings, or photographs which cannot conveniently be
examined in court may be presented in the form of a chart, summary, or
calculation." Courts have cautioned that Rule 1006 is "not a back-door vehicle
for the introduction of evidence which is otherwise inadmissible," and that the
voluminous evidence that is the subject of the summary must be independently
admissible. Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1160 (11th
Cir.2004); see also United States v. Pelullo, 964 F.2d 193, 204-05 (3d
Cir.1992). The plaintiffs' proffered calculations are better described as a
synthesis rather than a summary of the charts and other evidence on which Mr.
Crowley relied. The calculations went beyond the data they summarized and
included several assumptions, inferences, and projections about future events,
which represent Mr. Crowley's opinion, rather than the underlying information.
The proposed evidence is thus subject to the rules governing opinion testimony
and was properly held inadmissible. See Fed.R.Evid. 701, 702; Gomez v. Great
Lakes Steel Div. Nat'l Steel Corp., 803 F.2d 250, 258 (6th Cir.1986) (proposed
exhibit was improperly admitted because, despite being labeled "Summary of
Actual Damages," it "projected future events and economic losses, and was
therefore not a simple compilation of voluminous records."); State Office Sys.,
Inc. v. Olivetti Corp., 762 F.2d 843, 845-46 (10th Cir.1985) (projections of
future lost profits set forth in a summary "are not legitimately admissible as
summaries under Rule 1006, since they are interpretations of past data and
projections of future events, not a simple compilation of voluminous records.").

B
18

In denying the plaintiffs leave to engage an expert to replace Mr. Crowley, the
District Court was within its power under Rule 16(b) of the Federal Rules of
Civil Procedure to make and enforce scheduling orders. Rule 16 gives the
district courts wide latitude to manage discovery and other pretrial matters, and
to set deadlines for amending pleadings, filing motions, and completing
discovery. Subsection (b) provides that scheduling orders "shall not be
modified except upon a showing of good cause and by leave of the district
judge." This Court and others have frequently upheld a trial court's exercise of
discretion to deny a party's motion to add experts or other fact witnesses after
the close of discovery or after a deadline in a scheduling order. E.g., Burks v.
Okla. Publ'g Co., 81 F.3d 975, 978-80 (10th Cir.1996); Geiserman v.
MacDonald, 893 F.2d 787, 790-91 (5th Cir.1990); Koplove v. Ford Motor Co.,
795 F.2d 15, 18 (3d Cir. 1986).

19

In this case, the reopened discovery on remand closed in January of 2003. As

the defendants note, the plaintiffs were obligated under Federal Rule of Civil
Procedure 26(a)(1)(C) to disclose early in the case, at or within 14 days after
the discovery planning conference required by Rule 26(f), "a computation of
any category of damages claimed" and "the documents or other evidentiary
material, not privileged or protected from disclosure, on which such [damage]
computation is based . . . ." The plaintiffs did not submit that information until
May 2003, several months after the reopened discovery had closed, and nearly
seven years into this litigation. Although the District Court pressed plaintiffs'
counsel about plaintiffs' plan to proceed without expert testimony on the issue
of damages, and although the Court told plaintiffs' counsel that "defendants
have to know what claims a plaintiff is going to pursue in terms of damages in
order to be able to prepare for it," the plaintiffs insisted that no expert testimony
was necessary. The District Court then reopened discovery again to allow the
defendants to depose Mr. Crowley. The plaintiffs did not request leave to
present a damages expert until after the defendants filed their motion to exclude
Mr. Crowley. The District Court considered the plaintiffs' explanation for the
lateness of their request, the prejudice that would result if it were granted or
denied, and the extent to which the plaintiffs' decision to proceed without
expert testimony was a deliberate one. Under the circumstances, the District
Court was well within its discretion to deny the plaintiffs' motion.

III
20

Section 510 of ERISA, 29 U.S.C. 1140, makes it unlawful for an employer to

act against an employee "for the purpose of interfering with the attainment of

any right to which such participant might become entitled" under a benefit plan.
Section 510 concludes with the statement that "[t]he provisions of section 1132
[i.e., ERISA 502] of this title shall be applicable in the enforcement of this
section." The Supreme Court has held that the remedies available for a
violation of 510 are thus limited to those set forth in 502(a) of ERISA, 29
U.S.C. 1132. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 144, 111 S.Ct.
478, 112 L.Ed.2d 474 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54,
107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Mass. Mut. Life Ins. Co. v. Russell, 473
U.S. 134, 146, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985); see also Cox v. Keystone
Carbon Co., 861 F.2d 390, 392 (3d Cir.1988) (explicitly rejecting the argument
that "once Congress created a right pursuant to 510, Congress was without
power to restrict the remedies available . . . [and] it is entirely up to the court to
fashion appropriate remedies . . . .").
21

Though the parties dispute the scope and application of subsections (a)(1)(B)
and (a)(3), they do not suggest that any other portions of ERISA 502 apply to
this case.

22

* The District Court held that the plaintiffs could not seek relief under ERISA
502(a)(1)(B) because that section only provides relief for violations of the
terms of a benefit plan, and the plaintiffs have not alleged such a violation. We
agree.

23

* Subsection (a)(1)(B) provides that "[a] civil action may be brought by a

participant or beneficiary ... to recover benefits due to him under the terms of
his plan, to enforce his rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan." 29 U.S.C. 1132(a)(1)(B)
(emphasis added). The subsection thus provides a cause of action only where a
plaintiff alleges a violation of the terms of a benefits plan or an ambiguity in
the plan requiring judicial interpretation. In holding that subsection (a)(1)(B) is
not an appropriate vehicle for enforcing a claim of interference with the
benefits of a plan, which is the gravamen of the claim here, the Seventh Circuit
explained:

24

[T]o enforce the terms of a plan under Section 502, the participant must first
qualify for the benefits provided in that plan. Rather than concerning itself with
these qualifications, one of the actions which Section 510 makes unlawful is
the interference with a participant's ability to meet these qualifications in the
first instance.

25

Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir.1992) (citation

omitted). This appears to be the view of the few courts that have squarely
confronted the issue. See Strom v. Goldman, Sachs & Co., 202 F.3d 138, 142
(2d Cir.1999) (citing Tolle); Russell v. Northrop Grumman Corp., 921 F.Supp.
143, 150 (E.D.N.Y.1996) (citing Tolle). Other courts have implicitly taken this
view by indicating in dicta that 502(a)(3) is the provision available for
enforcing a 510 interference claim. See Millsap v. McDonnell Douglas Corp.,
368 F.3d 1246, 1247 (10th Cir.2004) ("Section 502(a)(3) of ERISA provides
the plan participant with his exclusive remedies for a 510 violation.");
Spinelli v. Gaughan, 12 F.3d 853, 856 (9th Cir.1993) (quoting 502(a)(3) as
the enforcement mechanism for rights under 510); Custer v. Pan Am. Life Ins.
Co., 12 F.3d 410, 421 (4th Cir.1993) (Section 510, "enforced through 1132(a)
(3) [i.e., 502(a)(3)], provides a companion to 1132(a)(1), which provides
actions to recover benefits or clarify rights."); Held v. Mfrs. Hanover Leasing
Corp., 912 F.2d 1197, 1203 (10th Cir.1990) ("If discharging [the plaintiff] was
`unlawful' under 1140 [i.e., 510], plaintiff was entitled to bring (and did
bring) an action for declaratory and injunctive relief under 29 U.S.C. 1132,
which authorizes [the relief set forth in ERISA 502(a)(3)].");4 cf. Dana M.
Muir, ERISA Remedies: Chimera or Congressional Compromise?, 81 Iowa
L.Rev. 1, 39 & nn. 321-22 (1995) ("Many commentators and courts agree that
Section 502(a)(3) ... provides the sole basis for suits alleging a violation of
Section 510."). Decisions from at least one court appear to take the opposite
view. See Zimmerman v. Sloss Equip., Inc., 835 F.Supp. 1283, 1290
(D.Kan.1993) ("The remedies for a violation of ERISA 510 are those set
forth in ERISA 502(a)(1)(B) and (a)(3)."); Babich v. Unisys Corp., No. 921473, 1994 WL 167984, at *3 (D.Kan.1994) ("the damages available to an
ERISA 510 plaintiff are found in ERISA's enforcement provision, 502(a)(1)
(B) and (a)(3).") (citing Zimmerman and Cox v. Keystone Carbon Co., 861 F.2d
390, 392-94 (3d Cir.1988)).5
26

We agree with the Seventh Circuit's reasoning in Tolle, which follows from a
straightforward reading of the statute. Subsection (a)(1)(B) provides remedies
only against a defendant who has failed to comply with the terms of a benefits
plan. It allows plaintiffs to collect benefits "due under the terms of the plan" or
to enforce "rights under the terms of the plan." Here, the plaintiffs have alleged
that the defendants interfered with their ability to become eligible for further
benefits, not that the defendants have breached the terms of the plan itself. We
therefore agree with the District Court that subsection (a)(1)(B) does not
provide relief for the violation of ERISA that the plaintiffs have alleged, and,
accordingly, summary judgment on the issue was proper.

2
27

The plaintiffs argue that this Court's decisions in Cox v. Keystone Carbon Co.,

27

The plaintiffs argue that this Court's decisions in Cox v. Keystone Carbon Co.,
861 F.2d 390 (3d Cir.1988) ("Cox I") and Cox v. Keystone Carbon Co., 894
F.2d 647 (3d Cir.1990) ("Cox II"), and the Tenth Circuit's decision in Adams v.
Cyprus Amax Minerals Co., 149 F.3d 1156 (10th Cir.1998), support a different
result. In this they are mistaken.

28

The plaintiffs' principal argument appears to be that, although they have not
alleged that the defendants violated the terms of the benefits plan, the District
Court could nevertheless effectively create a violation of the plan through a
decree ordering Lucent to adjust its pension records to treat the plaintiffs as if
they had remained at Lucent until retirement. The plaintiffs contend that such
an order would result in an immediate obligation on the part of the defendants
to pay the plaintiffs money that was rendered "past due" by operation of the
court's decree, thus entitling the plaintiffs to seek relief under subsection (a)(1)
(B). This bootstrap approach finds no support in the decisions the plaintiffs
cite.

29

The Tenth Circuit's opinion in Adams is inapposite, as the plaintiffs in that case
alleged violations of the terms of a plan rather than interference with the
attainment of benefits. The court in Adams was not asked to construct a
violation of an order and then treat that violation as if it were a violation of the
terms of a benefit plan. The court was simply asked to construe the terms of the
plan itself to determine whether the plaintiffs were eligible for the benefits they
sought. 149 F.3d at 1158-62. Unlike the plaintiffs in this case, the plaintiffs in
Adams alleged a violation of the terms of their former employer's plan and were
thus clearly entitled to seek relief under ERISA 502(a)(1)(B). Here, by
contrast, the plaintiffs have alleged that the defendants interfered with their
ability to become eligible for benefits, which, as the Seventh Circuit explained
in Tolle, is not a proper basis for relief under 502(a)(1)(B).

30

Although Cox I and Cox II involved claims under ERISA 510, they are also
unavailing as support for the plaintiffs' argument. In Cox I, this Court indicated
in dictum that 510 could be enforced through 502(a)(1)(B) when an
interference-with-benefits claim is alleged. 861 F.2d at 392-93. However, that
appears to have been a proposition assumed by the parties and accepted by us
without analysis or discussion. Moreover, we expressly declined to decide
whether 502(a)(1)(B) provided any relief to the plaintiff in that case. Id. at
394. Instead, we remanded for the district court to determine in the first
instance "if Cox is entitled to relief pursuant to 502(a)(1)(B), and if so,
whether or not Cox is entitled to a jury trial on this claim." Id.

31

On remand, the district court held that Cox had stated a 510 claim

enforceable under 502(a)(1)(B), but that he was not entitled to a jury trial and
that he lost on the merits of that claim. Cox appealed, and we affirmed in Cox
II. As in Cox I, the primary focus of our discussion was whether Cox was
entitled to a jury trial. 894 F.2d at 649-50. We did not undertake any analysis of
whether the district court had correctly held that a claim under 510 could be
enforced under 502(a)(1)(B). The only comment we made that appears
directly relevant to this issue undermines, rather than supports the plaintiffs'
position in this case. In disposing of Cox's arguments, we stated, "[t]o the
extent that Cox seeks compensatory damages for tortious interference, that
claim does not fall within section 502(a)(1)(B)." 894 F.2d at 650. Our decisions
in Cox I and Cox II thus do not conflict with the Seventh Circuit's reasoning in
Tolle, nor do they prevent us from adopting that reasoning in this case, as the
District Court did. Because we find that reasoning persuasive, we hold that a
510 claim for interference with benefits is not enforceable under 502(a)(1)
(B).
B
32

The District Court held that the plaintiffs were not entitled to "appropriate
equitable relief" under ERISA 502(a)(3) because they had waived their right
to request equitable restitution or injunctive relief. Alternatively, the District
Court ruled that, even if the plaintiffs had not waived any of their rights with
respect to a remedy, the relief they requested was not "appropriate equitable
relief" within the meaning of the statute. We agree on the latter point and,
therefore, do not reach the question of waiver.

33

* Section 502(a)(3) of ERISA, 29 U.S.C. 1132(a)(3), provides:

34

A civil action may be brought

35

(3) by a participant, beneficiary, or fiduciary

36

(A) to enjoin any act or practice which violates any provision of this subchapter
or the terms of the plan, or

37

(B) to obtain other appropriate equitable relief

38

(i) to redress such violations or

39

(ii) to enforce any provisions of this subchapter or the terms of the plan;

40

(emphasis added). The Supreme Court has held that the phrase "appropriate
equitable relief" means only "those categories of relief that were typically
available in equity" in the days of the divided bench, Great-West Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed.2d
635 (2002) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 256, 113 S.Ct.
2063, 124 L.Ed.2d 161 (1993) (original emphasis)). According to the Supreme
Court, such relief includes "injunction, mandamus, and restitution, but not
compensatory damages." Mertens, 508 U.S. at 256, 113 S.Ct. 2063. Thus, a
plaintiff seeking relief under ERISA 502(a)(3) must tie that request to a form
of relief typically available in equity. In Great-West, the Court suggested that
"the basic contours of the term [equitable relief] are well known," and can be
understood by consulting "standard current works such as Dobbs, Palmer,
Corbin, and the Restatements, which make the answer clear." 534 U.S. at 217,
122 S.Ct. 708; see also Sereboff v. Mid Atl. Med. Servs., Inc., ___ U.S. ___, 126
S.Ct. 1869, 1875-76, 164 L.Ed.2d 612 (2006) (referring to Dobbs, Palmer, and
Pomeroy's Equity Jurisprudence to explain the contours of the right to an
equitable lien).

41

As earlier noted, the plaintiffs sought a decree from the District Court requiring
Lucent to adjust its pension records retroactively to create an obligation to pay
the plaintiffs more money, both in the past and going forward. The District
Court rightly saw this as being, in essence, a request for compensatory damages
merely framed as an "equitable" injunction. The Court thus rightly concluded
that the requested relief is not available under 502(a)(3).6 Great-West, 534
U.S. at 210, 122 S.Ct. 708; Mertens, 508 U.S. at 255, 113 S.Ct. 2063 (1993);
see also Bowen v. Massachusetts, 487 U.S. 879, 915-16, 108 S.Ct. 2722, 101
L.Ed.2d 749 (1988) (Scalia, J., dissenting) ("It does not take much lawyerly
inventiveness to convert a claim for payment of a past due sum (damages) into
a prayer for an injunction against refusing to pay the sum, or for a declaration
that the sum must be paid, or for an order reversing the agency's decision not to
pay.").

2
42

The plaintiffs argue that the relief they seek is indistinguishable from the relief
approved by the Supreme Court in Varity Corp. v. Howe, 516 U.S. 489, 116
S.Ct. 1065, 134 L.Ed.2d 130 (1996), and, therefore, Varity and this Court's
decisions in Cox I and Cox II, as well as the Tenth Circuit's decision in Adams,
compel a different result. Once again, we disagree.

43

In Varity, the defendant corporation deceived several of its employees into

transferring their jobs and their benefit plans from a profitable subsidiary to

another subsidiary that had been set up to fail. Id. at 493-94, 116 S.Ct. 1065.
The trial court found that the defendant had violated its obligation as a
fiduciary to operate its benefits plan "solely in the interest of the participants
and beneficiaries" of the plan, and issued an orderciting ERISA 502(a)(3)
as its source of authority directing the corporation to reinstate the transferred
employees back into the benefits plan of the profitable subsidiary. Id. at 49495, 116 S.Ct. 1065. Varity is distinguishable from the present case for at least
two reasons.
44

First, the plaintiffs in Varity were deceived into transferring from one
subsidiary to another within the same company, and thus the relief in that case
was measurable according to the defendants' gain, rather than the plaintiffs'
loss. LaRue v. DeWolff, Boberg & Assocs., 450 F.3d 570, 576 (4th Cir.2006)
(holding that a plaintiff could not recover under ERISA 502(a)(3) where he
alleged that he lost money because his 401(k) plan administrator had failed to
follow his directions for making changes to his investment, noting that the
plaintiff "gauges his recovery not by the value of defendants' nonexistent gain,
but by the value of his own loss a measure that is traditionally legal, not
equitable"); Millsap, 368 F.3d at 1253 (holding, in a 510 case involving a
plant closing, that back pay was not "appropriate equitable relief" because it
measured the plaintiffs' loss rather than the defendants' gain). In Varity, the
plaintiffs sought pension benefits for work they had actually done for their
employer, and the court's decree was a matter of restoring the plaintiffs'
benefits enrollment to the preexisting arrangement, thus undoing the effects of
the defendants' deception. Here, however, the plaintiffs are seeking pension
benefits for work they never did for AT&T or its former divisions, but which
they argue they might have done had AT&T not adopted a hiring policy that
they claim violated ERISA. The remedy they seek is thus akin to "back pay,"
which is not an equitable remedy within the meaning of the statute. GreatWest, 534 U.S. at 218 n. 4, 122 S.Ct. 708; see also Millsap, 368 F.3d at 1253 ("
[P]aying backpay damages is like paying an extra worker who never came to
work." (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 229, 102 S.Ct. 3057,
73 L.Ed.2d 721 (1982))); id. at 1254 ("Plaintiffs' proposed method of
calculating their backpay award is based on each individual class member's loss
rather than Defendant's gain ... [and] is thus in the nature of compensatory
damages."); 2 Dan B. Dobbs, Law of Remedies 6.10(5) at 226 (2d ed.1993)
("Back pay claims do not differ remedially from the personal injury claim for
lost wages, or the contract claim for past wages due, for example . . . [s]o,
while reinstatement is clearly equitable as a form of injunctive relief, back pay
seems to be just as clearly legal.") (footnotes omitted).

45

Second, the Court in Varity did not rule on the question of whether the relief

sought was "equitable" within the meaning of the statute, because the
defendants stipulated that it was. 516 U.S. at 508, 116 S.Ct. 1065 ("Varity
concedes that the plaintiffs satisfy most of this provision's requirements,
namely, that the plaintiffs are plan `participants' or `beneficiaries,' and that they
are suing for `equitable' relief to `redress' a violation of 404(a), which is a
`provision of this title.'" (emphasis added)); see also Great-West, 534 U.S. at
221 n. 5, 122 S.Ct. 708 ("In Varity . . . it was undisputed that the respondents
were seeking equitable relief ..." (emphasis omitted)).
46

Cox I and Cox II are also unavailing as support for the plaintiffs' position. It is
true that those decisions addressed whether there is a right to a jury trial in
actions under ERISA 502(a)(1)(B), and that ultimately we decided there is
not, because such actions are analogous to actions for breach of trust, which
were typically heard in courts of equity. See Cox II, 894 F.2d at 649 (citing
Turner v. CF & I Steel Corp., 770 F.2d 43 (3d Cir.1985)). It does not follow,
however, that all relief available for a breach of trust at common law is
"equitable relief" within the meaning of 502(a)(3) of ERISA. The Supreme
Court explicitly rejected that argument in Mertens, 508 U.S. at 258, 113 S.Ct.
2063 (holding that the term "equitable relief" in 502(a)(3) does not mean "all
relief available for breach of trust at common law").

47

Neither does Adams require a result contrary to our decision here. In the context
of determining whether the plaintiffs in that case were entitled to a jury trial on
their claims, the Tenth Circuit explained that the recovery of benefits due under
the terms of a plan is analogous to equitable restitution. 149 F.3d at 1162. As
discussed above, however, the plaintiffs are not seeking benefits that were
wrongly withheld for work they performed for the defendants. Rather, they are
seeking an award of benefits as an approximation of the loss they suffered as a
result of what they say is the defendants' violation of 510 of ERISA. As the
Supreme Court explained in Great-West, this amounts to a claim for legal
damages, not equitable restitution, and thus is relief not available to the
plaintiffs in this case. 534 U.S. at 213-14, 122 S.Ct. 708 (explaining the
difference between legal and equitable relief); Skretvedt v. E.I. DuPont De
Nemours, 372 F.3d 193, 210-12 (3d Cir.2004) (same).

48

We therefore agree with the District Court that the relief the plaintiffs sought is
not "equitable" within the meaning of ERISA 502(a)(3).

C
49

Finally, the plaintiffs argue that the District Court's grant of summary judgment
is contrary to the mandate of this Court, and that its reading of 502 would

render 510 of ERISA without effect. Both of those arguments are without
merit.
50

A district court must "implement both the letter and spirit of the mandate" it
receives from this Court, but district courts are free to "consider, as a matter of
first impression, those issues not expressly or implicitly disposed of by the
appellate decision." Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943,
949-50 (3d Cir.1985) (citing cases). We held in the previous appeal that the
plaintiffs had presented sufficient evidence to survive a summary judgment
motion that argued the defendants lacked any intent to interfere with the
plaintiffs' pension benefits. We neither explicitly nor implicitly ruled on the
question of whether any of the relief the plaintiffs sought was available under
502, and that issue was therefore open for the District Court to address on
remand.

51

The plaintiffs argue, however, that the defendants' failure to raise the issue of
whether 502 afforded the plaintiffs any relief resulted in a waiver of that
issue. For that proposition, they rely on our decision in Skretvedt. In Skretvedt,
the plaintiff filed an eight-count complaint, the District Court granted summary
judgment to the defendants on all eight counts, and the plaintiff only appealed
as to two of the eight counts. 372 F.3d at 197-99. The plaintiff won a remand
on appeal and then sought to relitigate on remand some of the remaining six
counts for which he had not secured a remand. Id. at 199. We held that the
plaintiff had waived any right to recover on those claims by not challenging the
District Court's grant of summary judgment on those claims in the first appeal.
The panel stated that "[w]e have consistently rejected such attempts to litigate
on remand issues that were not raised in a party's prior appeal and that were
not explicitly or implicitly remanded for further proceedings." Id. at 203
(emphasis added); see also Wisniewski v. Johns-Manville Corp., 812 F.2d 81,
88 (3d Cir. 1987) ("An issue that is not addressed in an appellant's brief is
deemed waived on appeal.") (emphasis added).

52

Here, however, the defendants were the appellees in the previous appeal. As
such, they were not required to raise all possible alternative grounds for
affirmance to avoid waiving those grounds. See Kessler v. Nat'l Enters., Inc.,
203 F.3d 1058, 1059 (8th Cir.2000) ("[A]ppellate courts should not enforce the
[waiver] rule punitively against appellees, because that would motivate
appellees to raise every possible alternative ground and to file every
conceivable protective cross-appeal, thereby needlessly increasing the scope
and complexity of initial appeals."); Crocker v. Piedmont Aviation, Inc., 49 F.3d
735, 741 (D.C.Cir.1995) ("[F]ull application of the waiver rule to an appellee
puts it in a dilemma between procedural disadvantage and improper use of the

cross-appeal, [and t]hat dilemma, together with the potential judicial

diseconomies of forcing appellees to multiply the number of arguments
presented, justifies a degree of leniency in applying the waiver rule to issues
that could have been raised by appellees on previous appeals.") (original
emphasis).
53

We also reject the plaintiffs' argument that the District Court's construction of
502(a) renders 510 ineffective. As the Supreme Court has noted, the
"prototypical" claim under 510 of ERISA is when an employer terminates an
employee to prevent his pension rights from vesting. Ingersoll-Rand, 498 U.S.
at 143, 111 S.Ct. 478. Under such circumstances, the typical remedy is
reinstatement, which is an equitable remedy within the terms of the statute. 2
Dobbs 6.10(5) at 226. It may be that 502(a) restricts the scope of 510 as a
practical matter by leaving without remedy some violations of 510 that differ
from the "prototypical" case. That the plaintiffs are without a remedy in this
case, however, does not render 510 ineffective in all cases, and thus does not
implicate the canon of statutory interpretation that cautions against interpreting
a statute so as to render one part inoperative. See generally United States v.
Menasche, 348 U.S. 528, 538, 75 S.Ct. 513, 99 L.Ed. 615 (1955).

IV
54

For the foregoing reasons, we will affirm the judgment of the District Court.

Notes:
1

Of the 29 plaintiffs in this case, 3 eventually returned to Lucent, and all 3

remained there long enough to bridge their pension rights, though they note
they were "damaged by loss of pension-created service during the time
corresponding to their period of separation."

The plaintiffs challenge the District Court's order of October 23, 2003, denying
the plaintiffs' motion for class certification, and its orders of April 16, 2003,
and July 19, 2005, denying the plaintiffs' motions to compel discovery of
certain matters. We have considered the arguments of the parties with respect to
the District Court's order of April 16, 2003. We are satisfied that the District
Court correctly interpreted the mandate of this court with respect to the scope of
the 510 claims as to which the plaintiffs had presented enough evidence to
survive a motion for summary judgment, and that the District Court did not
otherwise abuse its discretion in denying the plaintiffs' motion to compel. The
plaintiffs' challenges to the District Court's orders of October 23, 2003, and

July 19, 2005, are moot in light of our

3

The plaintiffs correctly note that expert testimony is not always required to
prove damages in cases where projected future earnings are part of the
calculationSee, e.g., Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1175-76
(3d Cir.1993); Maxfield v. Sinclair Int'l, 766 F.2d 788, 797 (3d Cir.1985). Here,
however, the calculations were sufficiently complex that the District Court was
within its discretion to hold that someone more qualified than plaintiffs'
counsel's son was needed to testify. Cf. LifeWise Master Funding v. Telebank,
374 F.3d 917, 928-29 (10th Cir.2004) ("Given Mr. Livingston's utter lack of
any familiarity, knowledge, or experience with damages analysis, the district
court did not abuse its discretion in ruling that he could not testify as an expert
regarding such a complex subject matter as LifeWise's fourth damages
model.").

InHeld, the plaintiff alleged that the defendants violated ERISA 510 by
coercing him to resign shortly before he had completed the ten years of service
necessary for certain of his pension rights to vest. 912 F.2d at 1198. Although
the majority in Held stated that the plaintiff had "two distinct causes of action,"
one of which was a claim under 502(a)(1)(B) for "benefits due under the
plan," id. at 1203-04, it is clear from both the majority's and the dissenting
judge's discussion that the cause of action under 502(a)(1)(B) was not to
enforce rights under 510, but was instead based on the plaintiff's allegation
that he had actually accrued some pension rights that the defendants had failed
to honor. See id. at 1203 n. 7 (reading the complaint as potentially raising a
"colorable claim to something less than '100% of accrued benefits' based on his
employment of more than nine years"); id. at 1203-04 ("Admittedly, the parties'
briefs emphasize Mr. Held's 510 claim and give short shrift to the issue of
Mr. Held's separate claim for benefits due under the plan.") (emphasis added);
id. at 1207 (Ebel, J., dissenting) (disagreeing with "the majority's view that the
plaintiff has filed a separate claim for benefits due him under the terms of the
retirement plan" because, as he read the record, "it is clear that plaintiff's
request for benefits is linked only to his discriminatory termination claim under
section 510 of ERISA.").

As we will explain,infra III.A.2, our decision in Cox v. Keystone Carbon, 861

F.2d 390 (3d Cir.1988) does not hold that 502(a)(1)(B) provides relief for a
claim under 510 for interference with benefits.

This is not to say that an ERISA plaintiff's demand for money necessarily
requires the conclusion that the relief sought is not "equitable" within the
meaning of the statute. The Supreme Court has explained that some forms of
equitable reliefsuch as constructive trusts, equitable liens, or accounting for

the profits derived from wrongly held property include the payment of
moneyGreat-West, 534 U.S. at 213-14 & n. 2, 122 S.Ct. 708. As the Court
explained in Great-West, however, these forms of relief are available in limited
circumstances. "Almost invariably, suits seeking (whether by judgment,
injunction, or declaration) to compel the defendant to pay a sum of money to
the plaintiff are suits for `money damages,' as that phrase has traditionally been
applied, since they seek no more than compensation for loss resulting from the
defendant's breach of legal duty." Id. at 210, 122 S.Ct. 708 (quoting Bowen v.
Massachusetts, 487 U.S. 879, 918-19, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988)
(Scalia, J., dissenting)).